3 legal lessons to learn from 2011
From mutual aid to social media, things are changing for the fire service
As the year draws to a close, it is worth reviewing some of the legal issues to hit the fire and emergency medical services in 2011.
Social media is a big deal for emergency service organizations
Emergency service organizations, states, dispatch centers and non-profits are implementing social media in ways that have positively impacted public safety. At the same time, social media channels present a variety of liability risks that must be managed.
Organizations that use social media to engage in two-way conversations with the public are particularly at risk. For example, emergency service organizations that allow members of the public to post in their social media channels may face First Amendment liability when they attempt to remove or edit offensive posts.
These organizations may also face liability if members of the public place calls for help using social media channels and receive no response.
When using social media to communicate with the public, emergency service organizations should use social media like a news feed, not a telephone, providing information but not receiving it.
Organizations must also have published attorney-reviewed social media policies that use disclaimers to discourage citizens from using social media as an alternative to the 911 system.
Restricting social media use among paid employees also has risks. Disciplining employees for comments or other postings they make in social media channels outside of work may create First Amendment liability.
Recent actions from the National Labor Relations Board ("NLRB"), the federal agency responsible for employee-labor relations, suggest that a social media policy that is overly restrictive of employee speech violates the National Labor Relations Act even if the offensive policy is never enforced.
Organizations with paid employees should review internal social media policies to determine whether a particular restriction is necessary to preserve the core operations of the organization.
Provisions that punish employees for making offensive or annoying comments in social media channels during non-working hours will generally not pass muster.
It is extremely important to consult with an attorney licensed to practice in your state prior to terminating any employee for their use of social media.
And the labor laws, they are a changing...
The laws governing the relationship between employers and unions are being revisited in a dramatic fashion after years of stagnation.
At the national level, Obama administration policies are shifting the employer-labor balance in favor of the unions. Recent NLRB complaints, NLRB appointments and executive orders have signaled a sharp union-friendly departure from the Bush administration.
Although most emergency service workers' unions fall under the purview of the state labor laws, many states model their labor laws after the federal law and NLRB interpretations are influential.
At the same time, some Republican-controlled states are attempting to sharply curtail the collective bargaining rights of public sector unions.
Wisconsin, Ohio, Tennessee and Indiana have considered restricting or already restricted collective bargaining rights.
Even in those states that have not modified the laws, government officials are becoming increasingly resistant to any pay increases for both union and non-union paid responders.
In many cases, officials have relied on volunteers to minimize the impact of funding and personnel cuts.
As states continue to experience budget shortfalls, there will likely be continued shifts in this area which organizations must monitor.
Mutual aid agreements
The continued trend of waning volunteerism and cuts to paid departments have emphasized the need to revisit or readjust mutual aid agreements. Although some states have adopted statewide mutual aid systems by statute, many communities rely on agreements with surrounding departments not only to manage large incident but for day to day coverage.
Although the components of mutual aid agreements will be addressed in a future article, effective agreements must clearly define the relationship between responders from different organizations, allocate risks and create functional mechanisms for reimbursements.
Specifically, mutual aid agreements should deal with the chain of command, workers' compensation coverage, reimbursement for expenses and equipment damage, EMS and hazmat billing rights and payment of overtime.
This article is not intended as legal advice and there is no substitute for competent legal counsel licensed to practice in your state.
- 2011 Year in Review